Citation Nr: 9807291
Decision Date: 03/11/98 Archive Date: 03/25/98
DOCKET NO. 94-07 560 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for a bilateral eye
disorder.
2. Entitlement to service connection for a bilateral hearing
loss.
ATTORNEY FOR THE BOARD
Roberto D. DiBella, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1942 to June 1946
(had enlisted service from December 1941 to July 1942).
This appeal arises from a May 1993 rating decision by the RO.
By decision of May 1996, the Board of Veterans’ Appeals
(Board) remanded the case for additional development of the
record. The case is again before the Board for appellate
review.
(The issue of service connection for a bilateral eye disorder
will be the subject of the remand portion of this decision.)
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that, during his World War II service, a
155 mm howitzer blew up next to him, throwing him into a tree
and resulting in a two to three day hearing loss. He now
maintains that this in-service injury caused his current
bilateral hearing loss.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record. Based on its
review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board
that the evidence is in relative equipoise with respect to
the claim of service connection for a bilateral hearing
disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The evidence of record, as likely as not, shows now that
the veteran has a bilateral hearing disability which is due
to the exposure to acoustic trauma during service.
CONCLUSION OF LAW
By extending the benefit of the doubt to the veteran, his
bilateral hearing disability is due to an injury which was
incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West
1991 & Supp. 1997); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Historical
There are no service medical records on file because they
apparently were destroyed by the fire at the National
Personnel Records Center (NPRC) in St. Louis; however, the
separation examination, conducted in June 1946, is of record.
This examination notes a history of malaria in 1944 with
recurrences every six weeks, but medical history was
otherwise negative. The physical examination of the ears was
within normal limits, and hearing was 15/15 in both ears.
The veteran’s DD 214 and Separation Qualification Record show
that he was an Adjutant, an Intelligence Officer, an
Ammunition Officer and a Staff Ordinance Officer; he had been
awarded the Asiatic-Pacific Service Medal with Bronze Stars
for the New Guinea, Bismarck Archipelago, Southern
Philippines and Luzon campaigns; and that he has also been
awarded the Philippine Liberation Medal, World War II Victory
Medal, American Service Medal, Purple Heart and Bronze
Arrowhead.
The veteran further indicated in a VA Form 21-3101, dated in
September 1992, that had been treated for a hearing condition
on May 28, 1944 at the 41st Infantry Division Hospital, and
that his last unit of assignment had been Headquarters, 335th
Ordinance Battery, Camp Hood, Texas. In a response, received
in March 1993, NPRC indicated sick reports of the 41st
Infantry Division Headquarters from May 1, 1944 to June 30,
1944 noted no remarks in regard to the veteran’s alleged
treatment. Sick reports from the 335th Ordinance Battalion,
Headquarters, from September 21, 1944 to July 1, 1946, noted
no remarks in regard to the veteran’s alleged treatment.
Sick and Morning reports from Headquarters, 9301 TSV
Ordinance Detachment #6 Ordinance School, from July 1, 1945
to June 30, 1946; and Walter Army Hospital, from July 24,
1945 to July 31, 1945, noted no remarks in regard to the
veteran’s alleged treatment.
In an October 1992 VA general examination, the veteran
related a history of being thrown in an explosion in 1944,
and that both of his tympanic membranes were “broken.” The
physical examination of the ears revealed the tympanic
membranes to be intact; however, there was faint scarring on
both drums. No perforation or discharge was seen, and the
canals were clear. The pertinent diagnosis was that of
evidence of perforation of both tympanic membranes in the
past; both now well-healed with minimal scarring on
examination.
In a VA audiological examination, conducted in January 1997,
the veteran complained of having had trouble with his hearing
since May 1944. He further related a history of having been
on an island in the Southwest Pacific on a 155 mm gun crew
and that one of the guns had blown up right next to him,
throwing him into a tree. He reported that he was unable to
hear for about two to three days and that his hearing only
had partially come back as it was not like was before the
accident. He also related that his hearing had progressively
gotten worse since service.
The pure tone air conduction thresholds were reported as 35,
45, 15, 40 and 35 decibels in the right ear and 30, 30, 35,
60 and 60 decibels in the left ear at 500, 1,000, 2,000,
3,000, and 4,000 hertz, respectively. His speech
discrimination was reported as 96 percent in the right ear
and 84 percent in the left ear. The veteran related that
noise exposure in service included being in a combat unit
with lots of bombings and explosives. The examiner noted
that the veteran had a moderate hearing impairment in the
right ear, and a moderately-severe hearing impairment in the
left ear. He further indicated that speech recognition tests
revealed the right ear to be within normal limits with mild
impairment in the left ear. The examiner recommended
binaural amplification and continued use of hearing
protection when around noise.
In a VA audiological examination, conducted in February 1997,
the veteran related the same history as provided in the
January 1997 VA audiological examination. He added that, at
the time of his accident, his “eardrums broke” and the
military doctor had told him that his ears would heal once;
however, if he received a similar injury to his ears, he
would be deaf. The veteran reported that his ears did heal
and he had not had a perforation since service. Reportedly,
the military doctor had wanted to “drill in the mastoid,”
but the veteran had refused this operation.
The pure tone air conduction thresholds were reported as 35,
40, 20, 40 and 35 decibels in the right ear and 25, 25, 35,
50 and 60 decibels in the left ear at 500, 1,000, 2,000,
3,000, and 4,000 hertz, respectively. His speech
discrimination was reported as 96 percent in the right ear
and 84 percent in the left ear. The examiner noted that the
veteran had a mild hearing impairment in the right ear, and a
moderately-severe hearing impairment in the left ear. He
further indicated that speech recognition tests revealed the
right ear to be within normal limits with mild impairment in
the left ear. The examiner was of the opinion that the
veteran’s hearing loss was consistent with a hearing
disability due to noise exposure and that his hearing
disability could be related to his time in service; however,
this association was speculative.
II. Analysis
The veteran has presented a well-grounded claim for
entitlement to service connection for bilateral defective
hearing since the veteran’s service medical records were
destroyed and his DD 214 and Separation Qualification Record,
the February 1997 VA examination, and medical histories
provided by him support his claim. Russo v. Brown, 9
Vet.App. 46, 50 (1996). The facts relevant to this appeal
have been properly developed, and the obligation of the VA to
assist the veteran in the development of the claim has been
satisfied. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997);
Murphy v. Derwinski, 1 Vet.App. 78 (1990).
Where service medical records are presumed destroyed, the
Board’s obligation to explain its findings and conclusions
and to consider carefully the benefit-of-the-doubt is
heightened. O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).
Furthermore, in the case of any veteran who engaged in combat
with the enemy in service, the VA shall accept as sufficient
proof of service connection for any disease or injury alleged
to have been incurred in or aggravated by such service,
satisfactory lay or other evidence of service incurrence or
aggravation of such injury or disease, if consistent with the
circumstances, conditions or hardships of such service,
notwithstanding the fact that there is no official record of
such incurrence or aggravation. Every reasonable doubt will
be resolved in favor of the veteran; however, service
connection of such injury or disease may be rebutted by clear
and convincing evidence to the contrary. 38 U.S.C.A.
§ 1154(b) (West 1991 & Supp. 1997); See also 38 C.F.R.
§ 3.304(d) (1995). “Satisfactory evidence” means
“credible evidence.” Caluza v. Brown, 7 Vet.App. 498, 510
(1995). Furthermore, credible testimony is that which is
plausible or capable of being believed. Id. at 511.
The veteran’s DD 214 and Separation Qualification Record show
that he was an Ammunition Officer and a Staff Ordinance
Officer; he had served in campaigns in the Pacific, New
Guinea, Bismarck Archipelago, Southern Philippines and Luzon
during service; and that he had been awarded the Purple Heart
and Bronze Arrowhead. It is pertinent to note that receipt
of a Purple Heart, in the absence of evidence to the
contrary, is evidence demonstrating that the veteran had
engaged in combat during service. 38 C.F.R. § 3.304F0
(1997). Therefore, it is plausible that the veteran was
exposed to acoustic trauma since his assigned duties would
have exposed him to weapons; he served in the Southwest
Pacific during World War II; and independent evidence has
documented that the veteran was engaged in combat with the
enemy.
Furthermore, since the veteran was exposed to acoustic
trauma, the Board finds that his statements regarding his
temporary deafness and permanent partial hearing loss during
service are consistent with the circumstances, conditions or
hardships of such service. Finally, since satisfactory
evidence has been presented which has not been rebutted by
“clear and convincing” evidence, the aforementioned lay
evidence is sufficient to establish that the veteran was
exposed to acoustic trauma in service and that he had
received treatment for a hearing loss following such
exposure. Russo, 9 Vet.App. at 51.
The Board further points out that service connection for
defective hearing may be established only when the veteran's
audiometric test results, including speech recognition
scores, have reached a certain level. The provisions of
38 C.F.R. § 3.385 provide that for the purposes of applying
the laws administered by VA, impaired hearing will be
considered to be a disability when the auditory thresholds in
any of the frequencies 500, 1,000, 2,000, 3,000, and
4,000 hertz is 40 decibels or greater, or when the auditory
threshold for at least three of the frequencies 500, 1,000,
2,000, 3,000, and 4,000 hertz are 26 decibels or greater; or
when speech recognition scores using the Maryland CNC Test
are less than 94 percent. 38 C.F.R. § 3.385 (1997).
The results of the audiometric tests performed by the VA, in
January and February 1997, show that the veteran’s hearing
loss meets the criteria as set forth hereinabove. Therefore,
the crucial issue for the Board is whether the acoustic
trauma to which the veteran was exposed in service was the
cause of his current hearing loss, as claimed by the veteran.
To establish service connection, the veteran is not obliged
to show that a hearing loss was present in service. He may
establish the required nexus between his current condition
and his term of military service if he can show that his
initial injury occurred while in military service. Godfrey
v. Derwinski, 2 Vet.App. 352, 356 (1992). Therefore, if the
evidence sufficiently demonstrates a medical relationship
between the veteran’s in-service exposure to loud noise and
his current disability, it would follow that the veteran
incurred an injury in service. Id.
In the February 1997 VA audiological examination, the
examiner was of the opinion that the veteran’s hearing loss
was consistent with a hearing disability due to noise
exposure and that his hearing disability could be related to
his time in service; however, this association was
speculative. Since the evidence of record contains a VA
medical opinion which is favorable to the veteran’s claim, to
rebut his claim, a medical opinion would have to be obtained
to support a conclusion that his current bilateral defective
is not related to the acoustic trauma he was exposed to
during World War II, or other injury or disease in service.
Watai v. Brown, 9 Vet App 441, 443 (1996). The evidence of
record contains no such opinion. In fact, the October 1992
VA general examination contains an opinion which supports the
medical opinion provided in the February 1997 VA audiological
examination. In the October 1992 VA general examination, the
veteran was diagnosed with evidence of perforation of both
tympanic membranes in the past; both now well-healed with
minimal scarring.
Finally, under the doctrine of reasonable doubt, the veteran
need only demonstrate that there is an “approximate balance
of positive and negative evidence” in order to prevail.
Therefore, when a veteran seeks benefits and the evidence is
in relative equipoise, the law dictates that the veteran
prevails. Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990).
The negative evidence in this case includes a separation
examination which noted no hearing loss; no diagnosis of a
post-service hearing loss until approximately 51 years after
service; and a VA examiner indicating that an association
between the veteran’s current hearing loss and his time in
service was speculative.
However, the positive evidence includes service records which
document that the veteran was in combat with the enemy;
statements by the veteran which are consistent with exposure
to acoustic trauma during service; a VA examiner indicating
that the veteran’s current hearing loss was consistent with a
hearing disability which could have been related to his time
in service, and a diagnosis of residual scarring in both
eardrums due to a past perforation injury. The Board is of
the opinion that the evidence is in relative equipoise as
there is an “approximate balance of positive and negative
evidence.” Furthermore, since there no medical opinion of
record which specifically rebuts any relationship between the
veteran’s current hearing loss and his exposure to acoustic
trauma in service, the Board has no choice but to extend the
benefit of the doubt to the veteran.
Therefore, the fact that the veteran has not shown that a
hearing loss was present in service is not dispositive for
evaluating a claim of service connection. Since the evidence
sufficiently demonstrates a medical relationship between the
veteran’s in-service exposure to loud noise and his current
disability, it would follow that the veteran incurred an
injury in service. Thus, the Board concludes that service
connection for a hearing loss is warranted.
ORDER
Service connection for a bilateral hearing loss is granted.
REMAND
The veteran claims that he has a current eye condition which
was caused by an infection in his eyes while in service. In
an October 1992 VA visual examination, the veteran was
diagnosed with chronic blepharitis without presence of
anterior uveitis or scleritis. The service separation
examination had noted a diagnosis of chronic, catarrhal
conjunctivitis. In accordance with the May 1996 Board
decision, the RO scheduled a VA examination in order to
obtain an opinion as to the medical probability that any
currently demonstrated eye condition was related to the
chronic, catarrhal conjunctivitis diagnosed in service, as
claimed by the veteran, or due to other disease or injury in
service. The examiner was to provide a complete rationale
for all opinions provided.
In a January 1997 VA visual examination, the veteran was
diagnosed with Amiodarone corneal toxicity in both eyes;
however, the examiner did not provide an opinion which
addressed the etiology of this condition. In a January 1997
addendum to this VA examination, the examiner indicated that
the veteran had been on Amiodarone for cardiac arrhythmia for
approximately one and a half years, and had the sequela which
was rather common, which was Amiodarone deposition in the
cornea. However, the Board is unable to determine from this
opinion as to whether the examiner eliminated any current eye
condition from the diagnosed chronic, catarrhal
conjunctivitis in service. Consequently, the VA examination
is inadequate for evaluation purposes. If a VA examination
does not contain sufficient detail, it is incumbent upon the
rating board to return the report as inadequate for
evaluation purposes. 38 C.F.R. § 4.2 (1997).
In addition, since there has been a wide diversity of medical
opinions regarding the veteran’s eye condition, another VA
ophthalmology examination should be performed by an
ophthalmologist who has not previously examined him, and that
such examiner be provided with the claims folder for review.
Cousino v. Derwinski, 1 Vet.App. 536, 540 (1991). In light
of the regulations and this opinion, the veteran should be
afforded another VA ophthalmology examination in order to
obtain an opinion as to the etiology of any currently
demonstrated eye condition.
Finally, in his VA Form 21-526, received in July 1992, and a
May 1996 statement, the veteran listed treatment for an eye
condition dating back to at least 1954. However, no medical
records referable to eye treatment received by the veteran
since service have been submitted into the record. If the
veteran’s application for benefits is incomplete, the VA
shall notify him of the evidence necessary to complete the
application. 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1997);
Robinette v. Brown, 8 Vet.App. 69, 77 (1995). The claims
folder contains no record of the RO informing the veteran to
provide such records.
Thus, under the circumstances of this case, the Board is of
the opinion that the RO has been put on notice that relevant
evidence exists, or could be obtained, which, if true, would
make the veteran’s claim “plausible;” and the RO failed to
assist the veteran pursuant to the provisions of 38 U.S.C.A.
§ 5103(a) of informing him to provide this information.
Robinette, 8 Vet.App. at 80. Consequently, further
development is necessary prior to further appellate
consideration.
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should take the appropriate
steps to contact the veteran in order to
obtain information pertaining to medical
treatment he has received for any eye
condition since service. This should
include any treatment records located the
medical facilities listed in his VA Form
21-526, received in July 1992, and the
May 1996 statement. Based on his
response, the RO should undertake to
obtain copies of all records from the
identified treatment sources and
associate them with the claims folder.
2. The RO should take the appropriate
steps to secure copies of all of the
veteran’s VA treatment records and
associate them with the claims folder.
3. The veteran should be afforded a
special VA ophthalmology examination in
order to ascertain the current nature and
likely etiology of any currently
demonstrated eye condition. All
indicated testing in this regard should
be accomplished. The claims folder
should be made available to the examiner
for review before the examination. The
examiner should elicit a detailed history
pertaining to any eye injuries or
treatment for an eye condition incurred
during service. Based on his/her review
of the case, it is requested that the
examiner express an opinion as to the
medical probability that any currently
demonstrated eye condition was related to
the chronic, catarrhal conjunctivitis
diagnosed in service, as claimed by the
veteran, or due to other disease or
injury in service. The examiner should
explain the basis for his/her opinion and
reconcile it with any previously reported
medical evidence in the claims folder to
include the service separation
examination and the October 1992 VA
visual examination.
4. After the development requested above
has been completed, the RO should again
review the veteran’s claim. If the
benefit sought on appeal remains denied,
the veteran should be furnished with a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no further
action unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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